 Alright, welcome. I'm Sheila Wildman, Associate Director of the Health Law Institute, and it's my pleasure to introduce today's speaker, my friend and colleague Elaine Gibson. Elaine, of course, is on faculty here at Shulik, and many of you will know her from her long-standing, integral role in the seminar series, which she organized as Associate Director of the Health Law Institute from 1999 to 2013. Elaine has been a strong and constant force in health law and policy scholarship for many years, and has made important contributions to an impressive range of areas of inquiry and debate. Her early work examined the gendered effects of tort law remedies, and indeed, as we'll see today, she's never left torrents far behind, although she has, over her career, addressed a broad array of subjects generally oriented to the end or public value of health. Much of her work in health law can be located in the tradition of feminist socio-legal studies, but otherwise her work is strikingly eclectic, criss-crossing the domains of medical negligence, reproductive health regulation, family law, mental health law, patient safety regimes. In the last decade and more, Elaine has engaged in intensive award-winning work in privacy law, focusing on privacy and confidentiality of health information, with a particular emphasis on health research and public health surveillance. More recently, she's directed her scholarly as well as teaching energies to arrange her topics in public health law. So last year, she was suddenly Nova Scotia's authority on driverless cars, or this is my understanding, or at least she was an uncommonly vocal and well-informed enthusiast for the idea. Ms. Daldis Variety, Elaine's work is always expressive of a will to bring scholarly rigor and public mindedness together. She's completed a long list of reports for government and participated in government and government agency consultations on a range of policy initiatives and proposals from access to HIV medications to protection of health information to electronic monitoring of forensic patients, most recently. Elaine has in this way informed a range of decisions made by government on matters of key importance, provincially and nationally. And it's not surprising that government keeps knocking on our door. Elaine's work is always deeply and comprehensively researched. It's careful, methodical, accessible, and fundamentally oriented to yielding a practical response to questions of how law and policy can be directed to improving quality of life. And more generally, to strengthening the alignment of public values and public decision making. So your heart have to follow Elaine, and it seems now you have to follow yourself. So please join me in welcoming Elaine Gibson. Gosh, Sheila, thank you so much for that wonderful and overly impressive billing of me. We'll see how the talk goes. But I'm humbled by your words. Thank you. So my topic for today is, is it time to adopt a no fault scheme to compensate injured patients? I'm going to cut right to the chase and say that my answer is a tentative maybe yes. But I'll spend the next 40 minutes or so elaborating on that. So what am I going to be covering? First I'm going to look at the incidents of adverse events in Canada. Just what happens in the healthcare context within Canada. Then I'll take you through the law's response to patient injury and calls for reform. Then I'll focus on no fault compensation models. I will go into this in detail after, when we get to this point of the presentation, but let me just preface it by saying that 11 jurisdictions in the world have adopted some sort of no fault compensation scheme. And the essence of it is that an administrative body replaces or partially replaces the role of medical malpractice law. We'll look at what they are and how they operate and the recent evidence of performance. We'll also talk about the complexities or confounders in the idea of moving to no fault. And I'll talk about present day catalysts for change that give me the tentative maybe yes type of answer at the end. So here's a graphic image for you. It's a set of surgical scissors that were left inside of a patient following chest surgery. I want you to keep that image a little bit in mind as we look at the statistics. So Baker and Norton have done the most comprehensive study of patient adverse events and they did it in 2004. They looked at a number of hospitals across Canada in the year 2000 and they estimated from the files that 70,000 adverse events were potentially preventable. Of those, they said that up to 23,750 deaths were preventable. This is more deaths in the statistics than breast cancer, motor vehicle accidents and HIV combined. Now don't freak out and try to read the content of this. It's there for you to see the graphic and I'm going to take you through some of the different parts of the body that are focused on in this image. So Manitoba unlike most provinces requires reporting of adverse events. So this is a snapshot here courtesy of the National Post of adverse events in Manitoba hospitals from July 2012 to March 2013. So it's an eight month period and as you can see it covers many parts of the body. On the next slide I'm highlighting a number of them for you. So injury to the head, well big injury to the head. There was an equipment issue and air was inadvertently pumped into the patient's carotid artery causing death. In each case by the way I have the body part, the incident that went wrong and the result. In the chest a feeding tube was fed into the lung by mistake and the person developed aspiration pneumonia. Heart, a wrong prescription was given causing cardiac arrest in the patient. Kidney, they were doing a caesarean section and the person's ureter was cut. This is a duct that runs from the kidney to the bladder and the person lost his kidney as a result. Lower abdomen, a stapler that was used in a relatively simple surgical procedure failed. They had to do the procedure differently and it led to the death of the patient. Foot, so a new surgical table which lacked a proper brace for the person's leg that they were operating on and the patient's foot became permanently internally rotated as a result. So remember this is an eight month period in little Manitoba that we're talking about. So what does the law do to respond to patient injury? Well there are some minor avenues, well potentially very significant but seldom used like criminal law. But the main avenue of recourse for an injured patient is tort law which is medical malpractice when we're talking specifically about patient injury. So tort law is a faulty system in a number of respects but some are specific to or highly exaggerate it when it comes to medical malpractice in particular. The major aims of tort law are identified as two fold. First is to provide compensation to the injured person and second is to deter negative behavior. There are other aims often discussed but these are kind of the fundamental core generally when you're talking about tort law. Now let's look at the performance of the system. In medical malpractice there are very low success rates for patients. There are substantive law doctrines that favor the healthcare provider. There are structural disincentives to suing and there is a major role played by the Canadian Medical Protective Association which represents 95% of doctors in Canada. So the low success rates. Unfortunately we don't track civil law claims very thoroughly. The last good statistic we have on this comes from a review that was done by Robert Pritchard in 1990 and he said that less than 10% of viable patient injury claims are compensated. That was his estimate. Now if you look at the numbers here are the figures for the year 2014 of civil actions that were resolved against physicians. Remember the 70,000 number for potentially preventable adverse events in Canada. So when we get to number of claims at least claims resolved we're at 1092 so a dramatic drop. Now not all of those potentially preventable injuries could have resulted in a successful tort claim but it gives you an idea of how seldom cases are actually brought. What happens with those 1092? Well 587 are either dismissed or discontinued or abandoned. What does this mean? This means that the patient gets no compensation at all in those circumstances in more than half of the suits that are actually brought. Then 394 are settled and 111 went to judgment. What happened with those ones that went to judgment? The physician was successful in 85 and the plaintiff 26. So in the year 2014 in Canadian courts plaintiffs were successful in 26 cases. Now you have to add on to that the number that settled so that you're a little bit higher but this means that even in the cases that go to court the physician wins in 77% of those cases. And the statistics by the way are relatively consistent year to year in terms of the rates of success. Now let's look at the number of claims. So actions commenced against physicians in the year 2000 22.2 actions were commenced per 1000 physicians. By 2014 it was 9.5 actions commenced per 1000 physicians so much less than half. In other words patients are not suing much at all. So what's going on? I mentioned substantive law doctrines as part of the reason. So in a lawsuit in negligence there are two elements that are primarily operative that the person suing needs to prove. And one is the standard of care and one is causation. Standard of care. So physicians get a remarkable nod from the judicial system in that if they are acting in accordance with standard medical practice as long as it's a complex procedure then they are immune from being found to have been negligent. This is unlike any other area of tort law that this immunity is granted to physicians. There's mention in the case of other professionals but there's also wording that suggests that it's particular to physicians. There are also great difficulties in establishing causation. So causation can be in many areas of tort law a relatively straightforward cause and effect type of analysis. But imagine as soon as you're talking about people who are undergoing medical procedures they usually have morbidity aspects in the first instance. And they have many complex matters that are affecting the results of what they're undergoing. And so causation is a veritable minefield in the area of medical malpractice. And it's the area that most cases fail on. There are structural disincentives built in as well. So first is because that standard of care that the patient has to establish that the health care provider fell below and also because of the need for causation. There's a heavy, heavy reliance on expert evidence. And getting experts is costly. It becomes more costly by the way in a smaller province like Nova Scotia because the experts have to be brought in from elsewhere usually because it's hard to get experts who will testify against their friend and next door neighbor. The need for expert evidence results in many patient lawyers. I'll use the term plaintiff I bear with me. So many plaintiff oriented lawyers in this area will not even take a case unless it looks like the damages will be at least $300,000. And small claims court isn't available for the smaller claims because of the need for experts. I mean technically it would be available but it wouldn't be cost justified if you throw in the need for experts. The legal costs that are awarded against the unsuccessful party serve as a disincentive to bringing lawsuits. There are evidentiary protections that are provided in the area of health care that are unique to health care. The idea is that health care providers won't talk about what has gone wrong unless they have a protection from that information being shared for legal purposes. Another disincentive is the high mortality rate. So if you're talking generally about patients that have suffered at least $300,000 worth of injury then there's going to be a high likelihood of them dying before long. And damages are decreased if a person is deceased even if the estate can continue the lawsuit. So the role of the Canadian Medical Protective Association and I'll be referring to it from time to time as CMPA for short. I had mentioned that they represent 95% of Canadian physicians. There's a fundamental difference between the CMPA and how most other areas operate and that is that they are not an insurance company. They are explicitly a mutual defense organization. What does this mean? Well, insurance companies operate to the bottom line. So if you have a car accident and one insurer versus the other, or an insurer and a person who's been injured, they're going to each be driven to settle at some kind of approximate midpoint. And there's high incentive to settle. The CMPA sees its role as the defense of physicians and defending their reputations in particular. And so the incentive is far less to settle. And it's a model that is unique in the world. So the CMPA has massive resources for defense. They have assets in the last year of $3.2 billion. They have a specialization of defense lawyers, and I see at least one of them in the audience. They have what was described by one Ontario judge. They can be known to have a scorched earth policy. In other words, stop at nothing if you have a case that is appropriate for valiant defense. There have been calls for reform of the medical malpractice system. I mentioned already a review in 1990 by Robert Prichard. Justice Creaver, who did the Tainted Blood Inquiry, called for no fault compensation, and he has since called more broadly for no fault compensation. This is not unique to Canada. In the United Kingdom, Lord Wolf was doing a review of their civil justice system generally, and he made this statement. It became increasingly obvious that it was in the area of medical negligence that the civil justice system was failing most conspicuously to meet the needs of litigants. So if there have been all these calls for reform, there are forces that oppose reform as well. So one is inertia or complacency. Robert Prichard, eight years after he had released his report making a number of recommendations, gave a talk in which he addressed why zero of his recommendations had been taken up, and he said, well, he thought the main reason was that, unlike in the United States, there's no perception of a medical malpractice crisis. And in the United States, there was a sense that the costs were getting way out of control and everything was going crazy, not so much in Canada. The Canadian Medical Protective Association is strong and it mounts a valiant defense of medical malpractice. Lawyers are a powerful lobby group, and lawyers frankly stand to lose the most if the no fault compensation scheme is brought in. However, there have been a number of recent catalysts for change. First is the patient safety movement. Second is the financing of physician defense. And third is recent evidence of the performance of no fault systems. And I'm going to go through each of these in turn eventually. I'm just plugging, I'm just giving you advanced warning right now that these are the topics that give me reason to think that it might be time. But first I'm going to turn squarely to no fault and what it is. So there are 11 jurisdictions in 10 countries throughout the world that have adopted a no fault model. And basically, as I said, it's the creation of an administrative body so that instead of bringing a lawsuit, the injured person applies to whatever board it is and their claim is assessed. There are experts embedded in the system that are meant to be independent and impartial so the need for experts that I was mentioning is greatly reduced. There is no need, importantly, to establish that the health care provider was at fault. So the issues about standard of care and causation are greatly reduced. They're not eliminated, but they are certainly reduced. So what do you have to establish to be successful? This is the Nordic model. So the five Scandinavian countries have a model that is pretty close or exactly these criteria. So under this model, you need to establish one of the following. So if you have an equipment malfunction or a slip and fall, then it's just automatic. You have qualified for compensation. So a couple of the mentions that I gave of adverse events involved equipment malfunction, the stapler not working, those would automatically be subject to compensation. Or if you establish that the best practitioner in your field would have acted differently in the circumstance they faced. The best practitioner, not the average, not the reasonable, but the best person would have acted differently. If the injury could have been avoided with another equally effective treatment modality or method. Or if the extent of the injury exceeds what a reasonable patient should endure. So this would take into account a serious adverse reaction that was just a function of the medication or whatever. So now the New Zealand model has somewhat different criteria. You have to establish that the treatment caused the injury. You have to establish that it was not the ordinary consequence of whatever treatment it was. And that the adverse event was not solely attributable to resource allocation. In other words, delays due to time lapse between the incidents and the scheduling of a procedure, for instance. So these models, they are very different in scope in different parts of the world. New Zealand is unique in the world in having a comprehensive no-fault scheme for accidental injury. So outside of any kind of patient injury, just any kind of injury that is incurred is covered by their scheme. Then I already tipped you off about the comprehensive patient injury schemes in Denmark, Norway, Sweden, Finland and Iceland. They consider our mode of operation to be pretty primitive by the way when they look at what happens in North America to do with patient injury. Then there are some schemes that are limited to a particular type of injury. And in each case, it's a birth-related serious neurological injury. So the highest types of awards in medical malpractice have to do with compromised babies. So babies who had a complication surrounding birth and were profoundly injured. And if it's a neurological injury, then in Florida and Virginia and Japan, they have developed a no-fault compensation scheme. So they do it in part based on what I was saying about those being the most high levels of damages awards. They're hiving off the most serious ones to try to get a hold of that particular area in terms of liability. And then there are a couple of schemes that are limited by the size of the claim. So Wales has a brand new program of no-fault which is specific to injuries for which one seeks compensation of up to 25,000 pounds. So they've hived off the lower end of the system and France has done the opposite. It limits its plan to catastrophic injury. There are significant variations between the types of plans. The ones that I brought you through basically don't have any element of blame or fault in them, the Nordic and New Zealand models. The France model does. So you're back to certain of the questions that I said cause problems in the area of medical malpractice. There's an important question of whether the program is optional or mandatory. In other words, if a patient decides that they are unsatisfied or don't want to use the administrative scheme, can they bring a lawsuit instead? Or can they bring a lawsuit if it's injury above a certain amount for instance? Are they government operated or offered by private insurers? By the way, I think in the Canadian context perhaps the scheme that is best known of a comparable type would be the workers' compensation scheme. So if you think of how that operates to the extent to which you're aware how it operates, it's like that. The awards can seek to replicate the tort damages awards or they can be reduced or capped. So in Sweden for instance there's a cap of 1.2 million in damages in total. Now the criteria for assessment as we go on to how the systems are performing. I had mentioned that compensation and deterrence are fundamental values to our medical malpractice system. I've identified values also of social justice and efficiency. I think these are relatively uncontroversial. Justice of course is the overall aim of our justice system but efficiency is also a necessary part of our justice system. Evidence of the performance of the no-fault schemes then. An actuarial study was done by Price Waterhouse Coopers in 2008 and it was comparing countries with fault-based and those with no-fault accident compensation generally. There was a very recent study done in 2014 as well that compares medical malpractice systems in particular for the fault-based and the non-fault-based ones. And what they were looking at was the impact on healthcare spending overall in the OECD countries that they were looking at. So what did they find? The evidence of performance about cost. The actuaries said that the no-fault schemes had overall similar costs, fault versus no-fault, but that more people ended up being compensated with the no-fault scheme and therefore the per-claimant cost was lower. The OECD study said that no-fault decreases health expenditure per capita. There's an important caveat on that and that is assuming that the scheme uncouples deterrence and compensation. In other words, what I was talking about about removing the fault element of it. The administrative costs are significantly lower. That's because legal fees are greatly reduced or eliminated in how some countries operate. The cost of expert witnesses is greatly reduced and of course you're taking the cases away from the judicial system so the judicial system has some savings as well. How do they perform other than cost? Well, a significantly higher proportion of patients receive compensation. And the compensation is received in a timely fashion. Very importantly, the health care provider becomes an ally of the patient instead of in an adversarial relationship to the patient. And that's because of the removal of the need to establish fault. And so in some of the jurisdictions, typically the physician will actually assist the patient in drafting their claim and in putting the claim forward. Transparency can be enhanced because there can be a greater spirit of openness to talk about what went wrong if there's no need for blame to be a part of it. And claimants are found to have better health outcomes. They don't need the delay, which can be up to five years before a case goes to trial, during which time, frankly, there's a disincentive to get better because of the need to establish your damages in court. So there are some complexities or confounders that really need to be addressed. You know, so far I've made it sound pretty good, I think. But some factors need to be taken into account. And one is that there will be startup costs for such a system. Second is that comparisons are difficult due to variations in the social security net. So when we look at these other jurisdictions, we have to take into account, for instance, whether when you are injured you automatically get some kind of employment insurance that runs for a year, unlike in Canada, or also whether you are paid when you have a baby and you're paid to be at home for a significant period of time. Another difference that I was interested in is that in the UK, their legal aid was covering people bringing medical malpractice claims. So that would result in a dramatically different situation in Canada, I think, if one could qualify for legal aid to bring a medical malpractice lawsuit. The division of powers is a complexity in Canada. What do I mean? Well, this system is basically provincially based, so we can't just say, oh, wouldn't a national system be nice? Let's bring in a national system. It would need to be done province by province. That's not to say the provinces couldn't agree on this and agree on an approach. Next complexity or confounder is that the government controls the compensation amounts. So I was making a comparison to workers comp. You know that the amount that someone gets under a workers comp claim is capped at a certain level. Similarly, under these plans, I had mentioned they may or may not try to replicate the types of damages one can get through the tort system. Certainly a complaint about the New Zealand scheme is that patients get far less than they would if they were entitled to sue and tort. And importantly also on that control of compensation amounts is the fact that if economic times get tough, the government can save money by reducing the amount of award. Issues that need to be addressed in addition to what I have talked about already, if the no-fault scheme is optional, some of the benefit gets lost. What do I mean by that? Well, to the extent to which, for instance, lawyers may not be a necessary part of the process in bringing a no-fault claim, if you're going to have the option of suing in court, then obviously you're not going to have as much of reduced costs and the judicial system will still be involved in all of that. Interestingly, in Sweden where it is optional, they report that 99% of the cases go through the no-fault compensation scheme. In other words, there's very low claiming behavior. On the other hand, part of this might have to do with whether a culture is litigious or not. Hospital liability. So a great many of our resources are spent right now in trying to sort out liability as between physicians and hospitals. Why is this? Hospitals are not, per se, responsible for the actions of physicians who have visiting privileges at the hospital. They're responsible for appropriate selection and awarding of privileges and, to some extent, training and supervision. But beyond that, they are not automatically liable. And so, as I said, a great deal of resources gets spent sorting it out as between the two. If a no-fault scheme were brought in to compensate injured patients, it would make sense that both hospital and health care provider all be under the same scheme. One can anticipate strong resistance from the legal profession for reasons that I identified. Okay, so I had mentioned the catalyst for change. And first is the evidence of performance of the no-fault systems, which I've just taken you through. Second, the patient safety movement. So in the last 12 years, there's been a significant focus on patient safety. And, you know, I just, last week, Capital Health had a conference on patient safety and there are posters all through the hospital and everything. There was, as a result of concerns, the creation of the Canadian Patient Safety Institute. There's been just in the last couple of weeks, well, last few weeks, a new list, which is the identification of never events like surgery on the wrong limb. It's a list of the top never events that never should be happening in health care facilities. Both the Canadian Patient Safety Institute and the Health Council of Canada have called for an examination of no-fault compensation. Now, the other is the funding of physician defense. So there was a dramatic increase in CMPA fees year over year, 2014-15 to 2015-16. You can see the numbers there. We go from 7.6 million to 15 million. And that was an increase of 98.1% year over year. That percentage increase, in my understanding, is the same for all jurisdictions outside of Ontario and Quebec. So governments right now are highly motivated. Why are governments motivated? Well, if there's one takeaway from this talk that you remember, I want you to understand the role of government in the funding of CMPA fees. Until this year, the Nova Scotia government contributed 90% of physician CMPA fees above $1,500. And that's presently under negotiation, and actually they just resume negotiations today. In some provinces, 100% of the fees are paid by the province, or in some it's 100% above $1,000. In every province, they are somehow the government contributes to those fees. In Ontario, the government contribution is now $198.5 million that government is paying in CMPA fees. There are reasons for this that have developed historically, but the main point that you should reflect on is that our tax dollars then are used to defeat the claims of injured patients, because our governments are sponsoring or subsidizing the fees. So you can see that there's strong incentive right now on the part of provinces. And there have been some developments in terms of that dramatic increase that I mentioned, and there are some adjustments upcoming for the fee structures. So the criteria for assessment that I had mentioned, I had included compensation, deterrence, social justice, and efficiency. So how are they performing on these fronts? How are the no fault systems performing? So in the area of compensation, I think it's a no brainer really, that the compensation is superior. Many, many more patients get compensated. They may not get compensated at as high of levels, but they get compensated and they get compensated quickly. The area of deterrence, so we haven't talked much about that. I mentioned what deterrence is, that it is curbing negative behavior. The medical malpractice system is weak on deterrence in the first instance. Why is it weak on deterrence? Because it's not actually the person who has created the adverse event, who pays for it. It's all paid out of the CMPA fees. And the CMPA, by the way, pays those fees. A lot of different insurance plans have caps at 1 million or 2 million CMPA. It can go to whatever size of award it is. So some deterrence can be lost. The deterrence, as I said, is already weak in the medical malpractice system, the operation of deterrence. On the other hand, that very need, the very thing that I was saying is really good about no fault, that you don't need to establish fault or blame, means that deterrence is reduced and so it doesn't rate as well on that front. And that means that you really need a system that includes a robust, you need a system that includes robust error reporting and discipline. So those are essential parts of going to no fault, is that you need, as I say, robust system of reporting of error and also you need to ensure that the disciplinary system is effective enough. In terms of social justice, certainly the statistics that I showed you about number of patients who end up being compensated following medical error, being so low. This system is superior in enhancing the, certainly the number of patients and the types of patients who receive compensation. When it comes to efficiency, definitely superior. The cost of the system's functioning drop from about 50% down to in some jurisdictions more like 12.5% because of the replacement of the whole medical malpractice system with an administrative system. And that concludes my presentation. Yes. I have a time question about deterrence. I'll just explore that a bit. Is it deterrence from making the error or is it a mistake and is that linked to financial implications for the system? Because I think anyone who's been involved in making an error that impacts a patient, a lot of their thinking isn't around the monetary impacts. There are lots of things within the system that says, how do we fix this? How do we not make that mistake again? So I just wanted to explore that whether that might increase the inferior rating if the issue around deterrence just didn't financials to improve the system. Maybe we need a more mature system in order to do it. You know, I agree completely with you. So deterrence, there are commonly identified to be a couple of types of deterrence. And one is specific deterrence, i.e., hopefully that individual will not act in the same way next time around. And then there's general deterrence. And that is the effects of, for instance, a judgment as against an individual that is known more broadly and has effect on how others are going to operate in similar circumstances. And the financial aspects of deterrence, so it depends on your view in terms of whether it hits your pocketbook. And in neither case does it really hit your pocketbook. But the effects of a fault-based judgment against someone or of settling and the attribution of fault that implicitly accompanies that is somewhat there if there's a settlement as compared to if there's a no-fault compensation award. Yeah? I could speak a little more about where you think the proper scope of the system is. I think you directed it to things against physicians. I'm thinking there could be people injured by other actors and healthcare nurses like technicians, orderlies, hospital administrators, up to including the Minister of Health and I know the strivers, paramedics, firefighters administering first aid, the advice of ULIS, psychiatrists, and all of those. I got an advanced sort of flu shot the other day when there was a tragedy. There are lots of people, and not so many suits against them as physicians, but if you take the physicians outside the suits and somebody's injured by a nurse and they're full recovery, then there will be a big rise in suits against nurses. So who's going to get the excuse from court law under your system? It's just the healthcare system is pretty vague. It seems to me that what's driving this is the rise across the CMTA. I think that may be a good trigger, but it might not be the best criteria for finding the ends of the system. Let's have the system operate in areas where there are otherwise the positions. It's not a rational rate for figuring what's in and what's out of the system. Yeah, it's a good question and I don't have a full answer to it, but it reminds me to say that a lot of what I was mentioning has to do with physicians specifically. Why is that? It's because we have the best evidence in that area and so a lot of it is physician-based and there were times when I slipped into the language of healthcare provider purposely so. I mentioned the hospital liability aspect of it and it being important that hospital should be taken into account, which leads us to more complexities if that's the case, but I don't know for sure. Certainly the schemes in Scandinavia revolve around patient injury, but they're not exclusively hospital-based and so it would be if you are, and they have separate actually, this gets into a level of detail that I didn't get into, but they have separate schemes as well for prescription drug injury. So that kind of takes care of that aspect of it, but I would think, Juan, that I would really want it to be relatively broad and not just hospital-based. But the complexities of which you mentioned like emergency response teams, for instance, hope so. And I wanted to show that earlier. Do I understand you'd like to say that you expect that the local system will reduce the costs? The administration of costs, yes. Justice Minister? Yes. Because if you take your hypothesis that the soaring costs of litigation to compensate a few hundred people will be replaced by the costs to compensate 70,000 people, surely it's obvious that the costs will soar. Yeah, so. As a previous consideration of the local system, it's usually flounder, flounder on the entity. It's a utopia, but it's possible. Right. So let me go back to the, so the study done by Price Waterhouse Coopers in comparing fault and no-fault accident compensation generally, so not specific to medical malpractice. They found that the no-fault schemes overall costs were similar, but that more people got compensated with no-fault. This is not a medical specific. It's not medical specific. It includes medical. The OECD study was looking at health expenditures per capita, so taking into account the compensation, but more generally costs to the health care system of injury, and in that they said that it decreases health expenditure per capita. So, and then the main thing I was saying about costs is that the administrative costs are significantly lower. Right now it's about 50% that goes to administrative costs. It gets lowered to in the range potentially of 15%. Are we talking about funding out of general tax revenues? If that's so, that's even really different from workers' comp. Oh, yes. Yeah. I was just using workers' comp as an example of an administrative scheme. I mean, I kind of think it's a really comparable funding source compared to workers' comp, and I can't think of one. Yeah. And the answer actually is in different countries, it operates in different ways. So in some it actually would come out of the district health authorities budget, the compensation. But still up general tax revenues. Yeah. Yeah. So it depends. It's general tax revenues. It's general tax revenues except that it depends on the country's sense of whether it's appropriate that everyone pays for it or those who engage in a particular activity pay for it. So that's the distinction about having it come out of a health care budget. Yes. So if we eventually go to a two-tiered system where you've got social health care and then you've got people's services, can this be applied to both people? Or would there have to be differences for those? If I want to get a near replacement amount of QE2, the province-based board, and I want to go down to private shop, I pay for it. And then if you have an injury, another one would be quite the same, where the social system is paying for the money transfer again and so on. Right. So what happens in different jurisdictions on that is that the insurance can be made mandatory. In other words, it's the health care provider that needs to actually have the insurance. I had mentioned, I think, in one of the slides that it can be government operated, the administrative scheme, or it can be operated by private insurers. And so in the private insurer case, you just have the system be mandatory or optional to purchase it. But when I mentioned the ones that are for serious neurological injury of infants, on those ones, certainly in Japan, it's not mandatory to participate in that system at all, but a very, very high percentage of obstetricians participate in it and purchase the insurance. Yeah. I have a couple, but the first one, one of the things I find compelling about your analysis about the proposal generally is the shift from sort of corrective justice focus, at least idealized, to the idea that the individual will be, in some sense, fully compensated for the harm to social justice focus, which you mentioned and you gave us some detail about in terms of saying more people would be compensated. But is there, you know, I have my intuitions about this, but is there any sort of data looking at the socioeconomic or other characteristics of those who tend to receive poor compensation just to make clear just what kind of distributed justice types of questions we're looking at in terms of distributing compensation among different groups? That was one question that I had. And then I did have another one, which goes to, you mentioned that France had a system of no fault that does, in some way, express blame, and you contrasted that with, you know, the Nordic and New Zealand models, and I just wondered sort of how that works. Is it a specific penalty or what ways are they expressed in that model? Right. So, second one, first maybe. In the French system, the patient still has to establish the circumstances for causation of the injury due to someone messing up in what they did. And so that's where the fault element comes back in, because unless they can establish that, then they don't receive compensation. The social justice aspect, it's an excellent question that you're asking, and boy, there's not empirical studies to my knowledge other than when I talked about the $300,000 minimum to bring a medical malpractice action, the patient needs to be in a circumstance where they can at least put forward some of the costs, the initial costs, so you have a whole lot of costs that are layered on right away in terms of obtaining expert witnesses and all of that. And it's so people who can't afford it, can't afford it. I just wondered what if that contingency, or some, you know, say cases when these things are fairly harmful, having whether there would be such an obvious win that there'd be someone into the system, but perhaps that's just not the case. Such an obvious win. Such an obvious win because of such an obvious error. So I see an potential for a very high award, so you think that it might be done on a contingency basis, although there's still going to be costs. So there are, it's pretty exclusively done on a contingency basis, actually. But you saw the numbers. There are very, very few cases that are brought, even including the ones that settle. And so it means that we certainly have major class issues about this because if you are impoverished, then you're certainly not going to bring an action into it. Yes. After it's established that there will be compensation to a patient, is there anything, does anything happen to the doctor after that? Like, does anyone investigate, like, do the College of Surgeons investigate their condom and stuff like that, and whether their risers will be sufficiently protected under this kind of scheme? Because what is the balance between the compensation and then for the investigation? Right. So there is a disciplinary process, as you know, through the College of Physicians and Surgeons, and that's, in fact, many, many more cases now that the CNPA is representing. I think the comparable figure is more than 4,000 that are regulatory affairs, discipline, or it can be, for instance, a question of fraud in billing, or any of that, and that's, and so CNPA represents them in those kinds of cases as well. So are you asking what's the parallel? So a complaint needs to be laid with the College of Physicians and Surgeons, or... Maybe I can help here? Yeah. The colleges now have a renewal form every year for a medical license, and on that form there are questions of have you settled any lawsuits this year, or have you been sued this year? So when there is a lawsuit, the college becomes aware. They ask for information in an appropriate case of a follow-up. And they can commence a disciplinary action on their own, right? They can't, but remember, not every medical error is a disciplinary comment. Right, yeah. I guess my question was more so, like, under a no-fault scheme, would there be further investigation into the doctor's conduct after... Oh, I see. Yeah. Okay, so you're asking about no-fault. And that's where I was saying, because you do have the somewhat loss of deterrence, you need to ensure that you have the properly functioned disciplinary system and also a system for reporting of error. So I was mentioning early on, when I showed you that figure of the human body, that Manitoba has adverse events reporting that's mandatory, but not every jurisdiction in Canada has that. It certainly came to mind when you were talking about the Nordic model and you talked about it as a standard, so there were apparently a set of criteria that one could hitch the claim for compensation on. And one of them applied the standard of the best practitioner. Right? So it was a sort of fault on the best practitioner. I thought, wow. Because immediately, you know, it comes to mind as house or something like that. How do people actually make those claims? You're looking around for, you know, who is it? Who's the top gun? I don't know. Why is that working? Best practitioner. How does it work? This is a much more abstract. So really, how it works is that there is a team of the administrative team, right? And there are physicians who serve on the administrative team who then assess it. And if in their judgment, the best practitioner, which may be themselves, or maybe someone else, if that best practitioner in that particular specialty, if they would have done it differently, then your claim is established. So it's just to bring in evidence as to, you know, Joe So-and-So does this. Yeah. Okay. Yeah, that's right. Yeah. We had money to get it. Sure. Because our system is fault-based, and fault-based on a reasonable standard. Yeah. I used to be to say that we're moving from the reasonable standard to the very best standard, the gold standard. If you could establish, that was one, you had to establish one of the different criteria. So I'll take you back to them. Isn't equating it to the reasonable standard just a general idea? So, yes. If you could establish that the best practitioner in that particular specialty would have acted differently than you've established a claim. But look at the other ones as well. If the injury could have been avoided with another equally effective treatment modality, or if the extent of injury exceeds what the reasonable person should endure, you can see that, so when I was talking about the best standard, that's where the best standard comes in, as opposed to the reasonable person standard. Could you talk a little bit more, I think you mentioned sweetness, different compensations for pharmaceutical drug injuries. And I guess I'm thinking about this in terms of progressive licensing and the discussion around the leasing of drugs in phase three trials, sort of really early stages under the sort of care of physicians in certain conditions and stuff like this. And I'm just thinking that just the whole potential for problems that might involve from this. So how does Sweden deal with that? Like deal with pharmaceutical drug injuries differently? So it's a similar no-fault scheme. I don't know the details of it. I haven't been looking at that, Janice, but it's similarly a compensation scheme based on no-fault due to pharmaceutical injury. Fiona, may... No? I wonder if they would exclude that from descriptions of drugs that have already been accepted for, you know, contact. I mean, there's so many possibilities where there's all places prescribing and there's places prescribing, but with increasingly drugs coming through at earlier stages of development. I can't imagine that they would have set that because, as you pointed out, their risks would be so much greater that we'd allow those possible drugs to have totally accrued and, you know, all the adverse effects. Yeah, it'd be interesting to look at them. I'm still not clear why the franc system counts as no-fault if you have to prove they've messed up. Oh, okay. I'm just going to look up the specific criterion. It is that you... It's for patients who experience a medical hazard directly attributable to an act of prevention, diagnosis, or treatment. It... So it may not count as no-fault technically in a way, except that it's an establishment of an administrative scheme that can replace use of the court system. It counts as no-fault because it's... So it's not causation as a false thing in the bretts. It's that it resulted from treatment but not the treatment with exigence so that's when the fault disappears. Yeah, except you have to... These are all as a result of treatment. Right, so that's why that still counts as no-fault. Yeah, yeah. Okay. It's a good question. Like, really, it's a hybrid system, the French system. And so I would have to think more about whether it technically should be in the no-fault category. The label no-fault is a little bit misleading in that regard as well. Do you have another question? Going once? Going twice? Thank you so much, Lynn. Let me just say just a quick word about our next seminar, which is coming up next term. So we have four more helpful seminars coming up next term. And the first is on January 15th. So Friday, January 15th, we have Amy Bombay, who's with the Department of Psychiatry and the School of Nursing, Derek Dow. The topic is historical trauma among Aboriginal peoples. Implications for improving well-being. So again, that's Amy Bombay on Friday, 15th of January. So I think you see what I mean. I loved how all of your ears really pricked up when Elaine came to her takeaway when she said, tax dollars are being used to defeat the claims of injured patients. I just filmed the whole room sort of woke up and I thought, so I'm talking about, you know, deeply researched, important, but also accessible work is what I associate with Elaine Kixon. So thanks, Elaine, for taking us through this challenging area of regulatory reform proposals and sharing your tentative, but still compelling insights.